STEPHEN J. ISAACS, 859-252-5757, a Kentucky DUI Attorney with Isaacs Law Office, writes about defenses to Driving Under the Influence / DUI / DWI in Kentucky.

Officer's Subjective Opinion Can Support Kentucky DUI Conviction

Even with the suppression of Standard Field Sobriety Test (SFST) evidence in a DUI case, a person can still be found guilty of DUI in Kentucky based on an officer’s subjective opinion that a person was driving under the influence (DUI).

Frequently an officer will testify that the motorist arrested for DUI was, in his opinion, operating the vehicle under the influence because of they observed the motorist with slurred speech, red bloodshot eyes, and having an odor of alcohol. In today’s world, this describes many sober but overworked people, including people with diabetes, colds, flu, dentures, and more. So the ultimate issue at trial in Kentucky could ultimately center on an officer’s subjective opinion, whether right or wrong (For example, how would an officer know whether the person he just met and arrested for suspicion of DUI normally had red bloodshot eyes and slurred speech. ).

In a recent unpublished opinion, the Kentucky appellate court upheld a DUI conviction on similar facts. The opinion did not list all of the facts in this case. The officer performed a valid traffic stop on a vehicle having headlights illuminated but not the taillights. The officer testified that the driver exhibited slurred speech, had red bloodshot eyes, and admitted to consuming two beers. The court apparently allowed testimony that a portable breath test (PBT) administered at the scene revealed the presence of alcohol (Note that PBT evidence is normally not admissible in Kentucky courts per statute, but the opinion was silent on the issue of admissibility.) There was no testimony that the officer complied with national standards in administering the standard field sobriety tests (SFSTs). The opinion indicated that the officer administered two of the three standard field sobriety tests: the opinion was silent on the third required field sobriety test. The tests were not suppressed by the trial court. The defendant appealed his conviction arguing that the appellate court should overturn his conviction because the officer conducted the One Leg Stand (OLS) test on uneven pavement which also contained loose gravel, which tends to invalidate this test according to National Highway Safety Traffic Administration (NHTSA) standards.

The Appellate court refused to overturn the conviction. The court considered the evidence provided and decided that even if the field sobriety tests (SFSTs) were so flawed as to require their exclusion, a jury would not have reached a different result. The court held that the evidence was enough to support a DUI conviction in this case. In short, the court upheld the DUI conviction based on an officer’s subjective opinion that a driver exhibited slurred speech, had red bloodshot eyes, had the odor of alcohol, that the PBT revealed the presence of breath alcohol, and that the driver admitted to having two beers.

Of significance, the opinion was silent regarding any scientific objective evidence contradicting the officer’s opinion at trial. Scientific studies have been performed indicating the high error rate of officers assessing a person’s sobriety. This has been the primary basis for NHTSA developing Field Sobriety Tests to be administered in a standardized manner to eliminate “false positives.” For example, in a 1994 study using 21 sober (non-drinking) subjects using trained police officers to evaluate SFST’s using videotapes of the individuals performing SFST’s, forty-six (46) percent of the officer’s decisions were that the individuals had “too much to drink.” (Cole S, Nowaczyk, RH, Filed sobriety tests: Are they designed for failure? Perception and Motor Skills 1994; 79:99-104.) In other words, nearly half of the officers stated that 21 non-drinking sober individuals had failed the SFSTs and were intoxicated!

So, was the jury and the Appellate Court right in this case? You be the judge. Use the comments section to express your opinion.

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